By: Paul Emanuelli
This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its December 2018 decision in MCR Federal, LLC, the U.S. Government Accountability Office (GAO) ordered the government to accept a complainant’s late proposal after finding that the government failed to allow bidders enough time to submit their final bids. The dispute dealt with a multi-staged evaluation process for a support services contract. One of the short-listed bidders challenged the final submission process, arguing that it was not provided adequate time to make its final submission, which was referred to in the process as the Final Proposal Revision (FPR). The GAO agreed:
MCR argues that the agency unreasonably failed to provide a sufficient amount of time for it to submit a FPR to address the agency’s concerns. Protest at 9. In this regard, MCR asserts that the agency identified areas of its proposal that required substantial revisions if MCR hoped to remain competitive and that the time provided by the agency to respond was insufficient to complete the necessary revisions. Protest at 9-10; Comments at 6. In its request for relief, MCR requests that our Office recommend that the agency provide no less than 30 days to submit a FPR. Protest at 11. For the reasons discussed below, we conclude that MCR was not provided a reasonable amount of time to respond to the agency’s interchanges, and we sustain the protest on this basis.
While the government argued that the timing of final submissions in a multi-stage process is up to the discretion of government contracting officers, the GAO disagreed, finding that in the specific situation the eight days provided for the final submissions was inadequate in light of the complexity of the required responses:
Based on the unique circumstances presented here, and the nature of what the interchanges required of MCR, our review of the record leads us to conclude that the response time provided was unreasonable. Instead, the record shows that the time provided to MCR was not calculated to provide the firm with a fair opportunity to improve its proposal, or to maximize the agency’s ability to obtain the best value. See FAR § 16.505(b); Gulf Copper Ship Repair Inc., supra.8
RECOMMENDATION
We recommend that the agency provide MCR a reasonable amount of time to respond to the agency’s concerns, and that the agency evaluate proposals received in response to the interchanges.
As this case illustrates, purchasing institutions should ensure that competing bidders are afforded adequate time to submit their bids. In addition to applying to single-stage bidding processes, this rule also applies to the timeframes around final submissions made by short-listed bidders in multi-stage bidding processes.
